Cheung (Migration)

[2020] AATA 2707

Cheung (Migration) [2020] AATA 2707 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ching Cheung

CASE NUMBER:  1803728

HOME AFFAIRS REFERENCE(S):          BCC2016/3287603

MEMBER:Andrew McLean Williams

DATE:30 June 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 30 June 2020 at 11:26am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – validly married – financial, household and social aspects of relationship – nature of commitment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2)(a), 65

Migration Regulations 1994 (Cth), r 1.15A(2), (3), Schedule 2, cll 820.211(2)(a), 820.221

CASE

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2018 to refuse to grant the applicant Ms Ching Cheung a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 4 October 2016, on the basis of her relationship with her sponsor and husband, Mr Jonathan Edward Nutter. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221, because the delegate was not satisfied on the basis of the evidence then before the delegate that the applicant and her sponsor were in a genuine domestic relationship.

4. The applicant appeared before the Tribunal by means of telephone on 26 March 2020 to give evidence and make submissions. The Tribunal also received oral evidence from the applicant’s husband, Mr Jonathan Nutter.

5. The applicant was represented in relation to the review by her registered migration agent, Mr Kelvin Mateer.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant and her husband Mr Jonathan Nutter are in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is either the spouse or de facto partner of an Australian citizen, or Australian permanent resident, or an eligible New Zealand citizen. In the present case the applicant claims to be the married spouse of her sponsor, who is an Australian citizen.

9. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not those of a de facto relationship. 

11. The applicant is a citizen of Hong Kong, and originally came to Australia as a student.  The applicant and her now husband initially met one another via social media in December 2014.  Thereafter their relationship progressed, until the stage when the applicant and her husband were married, on 20 September 2016.  The Tribunal has cited a certificate of marriage, wedding photographs and statutory declarations by the applicant and her husband each attesting to the circumstances of their meeting, the evolution of their committed relationship and culminating in the fact of their marriage.  All of that evidence is entirely accepted by the Tribunal.

12. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

13. In relation to the matters specified in r.1.15A(3)(a), (b), (c) and (d), and any other relevant circumstances of the relationship under r.1.15A(2), the Tribunal observes the following:

    ·Financial aspects of the relationship – Ching Cheung and Jonathan Nutter have now been married for three years and nine months.  Since the date of their marriage they have constructed a new home together at Springfield and have a joint mortgage.  They have joint bank accounts.  All of their major household bills are now in joint names.  They are each now the beneficiary of the others superannuation policy in the event of the death of their partner, and all of their major financial decisions are made jointly by them as a couple. 

    ·Nature of the household – Currently the applicant and her husband do not have children, yet plan to have children in the future.  They have the joint ownership and care of a Staffordshire bull terrier and share together all aspects of their domestic and social lives.  The applicant has taken primary responsibility for bill payment and household chores inside the home.  Meanwhile Mr Nutter has assumed primary responsibility for yard work, home maintenance, and gardening.

    ·Social aspects of the relationship – statutory declarations and oral testimony from each of the applicant and her husband make it abundantly clear to the Tribunal that the applicant and her husband represent themselves to the world at large as being a married couple.  Photographic evidence and statutory declarations from other family members confirm the fact that the applicant and her husband are genuinely married, and are regarded within their social and family circle as a couple, in a long term and permanent relationship.

    ·Nature of persons' commitment to each other – on the available evidence the Tribunal is amply satisfied that Jonathan Nutter and Ching Cheung are fully and exclusively committed to one another and regard their relationship as a long term one.

14. On the basis of the above the Tribunal is satisfied that the applicant and her husband are mutually committed to a shared life together to the exclusion of others; that theirs is a genuine and continuing relationship; and that they live together on a permanent basis such that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision. The Tribunal is also satisfied that the sponsorship mentioned in paragraph 820.211(2)(c) has been approved by the Minister and now remains in force, such that cl.820.221(4) is satisfied.

15. Therefore the applicant meets cl.820.211(2)(a) AND cl.820.221.

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

17. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2)(a) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).